An Update on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

On February 25, 2021, the Ministry of Electronics and Information Technology of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The details of the Rules are available in our previous article here.

According to Rule 4(1), a “significant social media intermediary”, i.e., a social media intermediary having more than 5 million registered users in India, within three months from the date of notification of the threshold thereof, has to establish a three-tier system for observing due diligence, comprising of a Chief Compliance Officer (“who shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder”), a Nodal Contact Person (“for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made thereunder”) and a Resident Grievance Officer, all residing in India.

According to Rule 4(2), a significant social media intermediary providing services primarily in the nature of messaging, such as WhatsApp, Facebook Messenger, Telegram, etc., shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a competent Court or Authority.

The three-month deadline for social media platforms to comply with the IT Rules, 2021 ended on May 25, 2021. The Government of India, on May 26, 2021, issued a letter to all the significant social media intermediaries, asking inter alia, the status of compliance by the said intermediaries.

In lieu of the compliance, WhatsApp filed a lawsuit against the Government of India in the Delhi High Court, contesting mainly Rule 4(2) of the IT Rules, 2021 by relying on the Supreme Court’s judgment in the case of Justice K S Puttaswamy vs Union of India. A spokesperson from WhatsApp stated that “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy”. Recently, WhatsApp updated the FAQ page on its website, with a very detailed post about “What is traceability and why does WhatsApp oppose it.”

In response to Whatsapp’s plea, the Ministry of Electronics and Information Technology of India, in a press release clarified that “Such Requirements are only in case when the message is required for Prevention, Investigation or Punishment of Very Serious Offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material.” The press release further clarified that the opposed Rules passes the proportionality test of the Indian Constitution and stated, “The cornerstone of this test is whether a lesser effective alternative remedy exists. As per the Intermediary Guidelines, the originator of information can only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure. Moreover, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards.” 

As far as other social media giants are concerned, Facebook has confirmed that they “aim to comply with the provisions of the IT rules, even as they continue to discuss a few of the issues which need more engagement with the government”. Twitter has yet to give any comment.

 India is a huge market for these significant social media intermediaries and it now remains to be seen how the entities will decide to proceed, especially after WhatsApp’s lawsuit against the Government of India.